Contracting prisoner rights to the lowest bidder

* Corrections has since responded to some of the comments made in this piece. The response is below.

New Zealand's prison privatisation regime needs updating to ensure prisoners’ rights are protected, argues the University of Auckland's Rebecca Kennedy

Prisoner welfare is a fleeting topic most New Zealanders have little need to spend time considering. Even though most of us are not affected by New Zealand’s correctional system, prisoner welfare is still an important topic that needs serious consideration.

The function of prisons is to punish offenders for wrongdoing, deter them from future wrongdoings and, theoretically, provide rehabilitation so they are less likely to offend again. Prisons do this by stripping prisoners of their liberty (i.e self-determination) for a set period of time. Loss of liberty is one of the most punitive outcomes for a member of free society. Everything is controlled – your meals, the people around you, your time spent outside, your activities and the way you are treated.

You may consider this ‘justice’ – imprisonment of someone convicted of a crime. But justice is also the fair and safe custody of an offender for the duration of their sentence, in accordance with domestic law and international standards of treatment. In stripping offenders of their liberty, other fundamental human rights – rights not part of the social contract of imprisonment – may be impinged.

Failures of prison management have ethical consequences. For example, when staff-to-prisoner ratios are too low or there is a violent incident in prison, prisoners may be locked in cells for extended periods for their own safety and that of staff. Such further reductions of prisoners’ free movement may be justified under certain circumstances. However, discretion sits with the prison manager, and it is difficult to know the exact ambit of a “reasonable” restriction of prisoners’ minimum entitlements.

This issue is magnified in privately-managed prisons. A private prison management company is unlikely to employ additional prison staff above stipulated minimums, as this may impact profit, so outcomes such as the one detailed are more likely. While the Department of Corrections is also looking to save costs, government departments are accountable to taxpayers, where private companies are accountable to shareholders. Simply put, the state is more invested in the doing of justice than private companies whose primary concern should be turning profit.

So, private prisons straddle an uncomfortable boundary between public and private functions. With prison privatisation, a for-profit company takes over administration of what is unquestionably a profound and coercive state power. And, the further prison management moves from government control, the harder it becomes for government to control how prisoners are treated.

Prisoners maintain the same inherent dignity that every other person in New Zealand is afforded by virtue of being human; prisoners are entitled to have their rights upheld and protected like anyone else.

I looked at this issue while studying law at the University of Auckland. My thesis, Much Obliged: An assessment of Governmental Accountability for Prisoners’ Rights in New Zealand’s Private Prisons, concluded our private prison regime inadequately safeguards prisoners’ fundamental human rights.
My research shows prison privatisation in New Zealand has mirrored the horrors of other jurisdictions, indicating that private prison management compromises service quality. In practice, inadequate monitoring and regulation by government allows private prison managers to operate by cutting corners, leaving prisoners to bear the brunt of mismanagement – through poor service outcomes and (more importantly) unsafe prison conditions.

Serco Group first signed a contract to manage Mount Eden Correction Facility (MECF) in early 2011. Following a series of damning incidents and allegations of mismanagement, the government took back control of MECF in April 2016. In March, Serco’s contract to run MECF expired, and there has been no definitive statement about whether the prison will be retendered for private management.

However, Serco Group also has a 25-year contract to run the Auckland South Corrections Facility (ASCF), which opened in 2015 and is located at Wiri, as a Public Private Partnership with the Department of Corrections. ASCF is still under private management, despite its own allegations of mismanagement, and the management contract still has more than 20 years to run.

The catastrophes at MECF (and ASCF) should have drawn enough negative attention to encourage better compliance from Serco Group and more intensive oversight from the Department of Corrections in the short term. However, significant shortcomings in New Zealand’s private prison regime remain unaltered. Nothing in the privatisation regime – in the law, management contract, or processes – has been amended to prevent the same mismanagement by Serco Group or inadequate monitoring by the Department of Corrections from happening again, especially once the public spotlight has dimmed.

It is important that private prison managers are held accountable for any mismanagement. But, the government needs to take responsibility for its non-delegable role in ensuring the safe custody of prisoners. The government is legally obliged to actively uphold the rights of all prisoners – even those in privately-managed prisons. To ensure New Zealand’s private prisons protect prisoners’ rights, the prison privatisation regime needs updating to set clearer, more comprehensive regulatory mechanisms.

Prisoner welfare is not something we can gamble as a means of testing the public/private boundary. Prisoners’ rights cannot fluctuate with political persuasion or public favour. Prisoners’ welfare should not be contracted to the lowest bidder. Prisoners maintain the same inherent dignity that every other person in New Zealand is afforded by virtue of being human; prisoners are entitled to have their rights upheld and protected like anyone else. I am not convinced prisoners will be protected under the current prison privatisation regime.

* Corrections responded to this piece with the following comments, attributed to Chris Fry, Deputy Chief Executive of Corrections, Commercial Services.

"The nature of the contract with SecureFuture (and Serco as prison operator) for ASCF is significantly different to the contract Serco held for Mt Eden Corrections Facility. Corrections is confident that ASCF is currently operating as a safe and secure prison and is performing in line with other prisons of a similar size.

"Corrections, along with SecureFuture and Serco, have adopted a number of layers of governance and assurance arrangements that have been independently reviewed and found to be effective.

"We have strong governance arrangements in place to gain oversight of ASCF at multiple levels – from the on-site monitoring team providing assurance on a daily basis, commercial and operational oversight groups, and governance groups led by the Department’s Executive Leadership Team."

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